Richman v. Sheahan

• Citation: 415 F.Supp.2d 929
• Decision Date: 23 February 2006
• Docket Number: No. 98 C 7350.,98 C 7350.
• Parties: Marcella RICHMAN, individually and as Special Administrator of the Estate of Jack B. Richman, deceased, Plaintiff, v. Michael SHEAHAN, in his official capacity as Sheriff of Cook County, et al., Defendants.
• Court: U.S. District Court — Northern District of Illinois

415 F.Supp.2d 929

Marcella RICHMAN, individually and as Special Administrator of the Estate of Jack B. Richman, deceased, Plaintiff, v. Michael SHEAHAN, in his official capacity as Sheriff of Cook County, et al., Defendants.

No. 98 C 7350.

United States District Court, N.D. Illinois, Eastern Division.

February 23, 2006.

COPYRIGHT MATERIAL OMITTED

Maureen D. Yamashiro, Donald J. Pechous, Cook County State's Attorney, Allen Stewart Kirsh, Grant, Ross & Fanning, Richard Arthur Devine, Assistant State's Attorney, Chicago, IL, for Defendants.

Jerome Edward Boyle, Alvin W. Block & Associates, Chicago, IL, for Plaintiff.

MEMORANDUM OPINION AND ORDER

COLE, United States Magistrate Judge.

I. INTRODUCTION

Judge Posner has lamented that all too often, experts are "the mere paid advocates or partisans of those who employ and pay them, as much so as the attorneys who conduct the suit. There is hardly anything, not palpably absurd on its face that cannot now be proved by some so-called experts.'" Olympia Equipment Leasing Co. v. Western Union Telegraph Co., 797 F.2d 370, 382 (7th Cir.1986).¹ Thus, courts are not allowed to "take . . . on faith" whatever a paid expert claims, Minasian, 109 F.3d at 1216, even if the expert possesses truly distinguished credentials. Rosen v. Ciba-Geigy Corp., 78 F.3d 316, 319 (7th Cir.1996). Rather, the Supreme Court has made clear that federal trial judges have an independent obligation to ensure that expert testimony is sufficiently reliable that it may be presented to the trier of fact. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

In light of the ubiquity of experts in modern federal litigation, cf. United States v. Brown, 32 F.3d 236, 239 (7th Cir.1994); In re Air Crash Disaster at New Orleans, La., 795 F.2d 1230, 1234 (5th Cir.1986),² and the gatekeeping function Daubert has imposed on trial judges, there is scarcely a case in which pretrial challenges to the admissibility of expert testimony are not raised. This case is no exception. The plaintiff has moved to strike the expert reports of the defendants' three expert witnesses and to bar their testimony at trial.

II. FACTUAL BACKGROUND

The plaintiff brings the underlying civil rights claim under 42 U.S.C. § 1983 on behalf of her son, Jack Richman, whom she alleges died shortly after fourteen sheriff's deputies restrained him during an altercation at his mother's appearance before an Illinois judge on a traffic violation. Following an exchange of words between the Richmans and the judge, the judge found Mr. Richman in contempt of court. As matters escalated, the judge ordered Mr. Richman removed from the courtroom. Mr. Richman weighed four-hundred-eighty-nine pounds. Plaintiff claims that the defendant sheriff's deputies responding to the situation used excessive force and that the defendant Sheriff of Cook County failed to properly train and supervise the deputies. See Richman v. Sheahan, 270 F.3d 430, 433-34 (7th Cir. 2001).

In their Fed.R.Civ.P. 26(a)(2) disclosure, the defendants have named three experts whom they intend to have testify about the use of force in law enforcement situations: John W. Bowman, Robert T. Johnson, and James F. Marsh.³ The plaintiff has moved to strike the reports and to bar the testimony of all three for failure to have included a complete statement of the experts' opinions, as required by Rule 26(a)(2)(B), Federal Rules of Civil Procedure. The reports of Messrs. Johnson and Marsh, the plaintiff submits, rely too heavily on an uncritical acceptance of the deputy sheriffs' deposition testimony, while Mr. Bowman's report is simply too conclusory. The plaintiff further complains that in all three reports the experts improperly drew legal conclusions and made credibility determinations. Finally, the plaintiff submits that all three experts ventured beyond their area of expertise and commented upon the medical evidence regarding Mr. Richman's condition and the cause of his death. Review of the expert's reports demonstrates that they comply substantially with Rule 26(a)(2)(B). There are, however, portions of the reports dealing with medical evidence, witness credibility and legal conclusions that must be stricken and the experts precluded from testifying about them.

III. THE ANALYTICAL FRAMEWORK FOR DETERMINING THE ADMISSIBILITY OF EXPERT TESTIMONY

In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), the Supreme Court held that the "general acceptance" test for the admissibility of scientific evidence, which had existed in the federal courts since 1923, was at odds with the liberal thrust of the Federal Rules of Evidence and their general approach of relaxing the traditional barriers to opinion testimony. Id. at 588-89, 593, 113 S.Ct. 2786. The Court held that the displacement of the "general acceptance" test by the Rules did not mean that the Rules placed no limits on the admissibility of purportedly scientific evidence. Nor was the judge disabled from "screening" such evidence. Quite the contrary. Under the Rules, trial judges have a responsibility to make a determination as a precondition to admissibility, that proffered scientific evidence rests on a reliable foundation and is relevant to the task at hand. Id. at 589, 597, 113 S.Ct. 2786. The insistence on reliability helps to ensure the integrity of the judicial process, Mid-State Fertilizer Co. v. Exchange Nat'l Bank of Chicago, 877 F.2d 1333, 1340 (7th Cir.1989), and is of such transcendent importance that judges can act sua sponte to prohibit testimony that does not pass muster under Daubert. O'Conner v. Commonwealth Edison Co., 13 F.3d 1090, 1094 (7th Cir.1994).

The primary locus of the obligation to ensure reliability, the Court in Daubert held, was Rule 702, which at the time provided:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

While discussing several factors which "bear upon the [reliability] inquiry,"⁴ the Court emphasized that the inquiry is "a flexible one," and that it was "not presum[ing] to set out a definitive checklist or test." The focus is not on the expert's conclusions, but on the underlying methodology. Id. at 593-595, 113 S.Ct. 2786. To be admissible, scientific evidence must supported by "appropriate validation." Id. at 590, 113 S.Ct. 2786.

Daubert concluded with a reaffirmation of the adversary system-"which is fundamental to Anglo-American jurisprudence," United States v. O'Neill, 437 F.3d 654, 660 (7th Cir.2006)(2006 WL 306928)-and the capability of juries to understand scientific evidence and weigh the credibility of the competing experts, notwithstanding their contradictory conclusions and "dogmatic assertions." Railroad Commission of Texas v. Rowan & Nichols Oil Co., 310 U.S. 573, 583, 60 S.Ct. 1021, 84 L.Ed. 1368 (1940). Vigorous cross examination, presentation of contrary evidence and careful jury instructions, the Court said, are the traditional and appropriate means of attacking shaky but admissible evidence. Daubert, 509 U.S. at 596, 113 S.Ct. 2786. Accord Walker v. Soo Line R. Co., 208 F.3d 581, 587 (7th Cir.2000); Smith v. Ford Motor Co., 215 F.3d 713, 718-719 (7th Cir.2000); Spearman Industries, Inc. v. St. Paul Fire & Marine Insurance Co., 128 F.Supp.2d 1148, 1150 (N.D.Ill. 2001)("The rejection of expert testimony is the exception rather than the rule, and the trial court's role as gatekeeper is not intended to serve as a replacement for the adversary system.'").⁵

The flexibility of the inquiry envisioned by Rule 702, the illustrative nature of the Daubert factors, and the considerable leeway a trial judge must have in deciding whether expert testimony is reliable, were dominant themes of Kumho Tire Co. Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). The Court held that the basic gatekeeping obligation created in Daubert applies equally to testimony based on technical and other specialized knowledge, id. at 141, 147-49, 119 S.Ct. 1167, and it recognized that there are many different kinds of experts and many different kinds of expertise. Id. at 150, 119 S.Ct. 1167.

Since the gatekeeping inquiry must be tied to the facts of the particular case, 526 U.S. at 150, 119 S.Ct. 1167, the Court held that a trial court may-but is not required to-consider "one or more of the more specific factors that Daubert mentioned when doing so will help determine the testimony's reliability." But, the Court stressed, those factors, which were meant "to be helpful, not definitive," "`neither necessarily nor exclusively apply to all experts or in every case.'" Id. at 142, 119 S.Ct. 1167. Their applicability will depend on " the nature of the issue, the expert's particular expertise, and the subject of his testimony.' " The procedure employed will depend largely on the "particular circumstances of the particular case at issue." Id. at 150, 152, 119 S.Ct. 1167. Accord Smith, 215 F.3d at 719 ("The Rule 702 test is a flexible one, and no single factor is either required in the analysis or dispositive as to its outcome.").

Rule 702, as amended, now provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

To gauge reliability, it must first be determined whether the expert is...